FCC Denies “Tell City” Waiver

The Media Bureau has denied the so-called “Tell City waiver” request to move an FM translator further than FCC rules currently allow.

The action concerns a request filed in November 2012 by Way Media for a minor change to FM translator W218CR, Central City, Ky. Way Media sought to change the station’s frequency (output channel) from Channel 218 to Channel 279 and move its transmitter to a new site in Tell City, Ind., at which the station’s 60 dBμ contour would not overlap with the 60 dBμ contour of the existing facilities.

From the proposed facility, the station would rebroadcast the signal of WTCJ(AM), a station licensed to Hancock Communications Inc., part of The Cromwell Group.

At the same time, Way and Hancock filed an application for consent to assign the station from Way to Hancock and said the deal’s closing hinged on the translator application grant. Way and the Cromwell Group argued the waiver was warranted because the current rule limiting how far a translator can be moved had an “outdated public interest benefit” and such a change should be considered in the interest of AM revitalization. The broadcasters said a waiver rather than a rulemaking is appropriate, because it “does not behoove the FCC to use rulemaking resources in tweaks to its existing rules if doing so would only benefit a limited class of broadcasters.”

They further claimed the waiver request had limits, namely “(1) the station’s existing transmitter site is within the 0.025 mV/m interference contour of the primary AM station; and (2) the move is not to an LPFM spectrum-limited market.” Other parties supported the request, including NAB, Emmis Communications, the Minority Media and Telecommunications Council, SESAC and iBiquity Digital.

In his decision denying the waiver, Audio Division Chief Peter Doyle said the change was actually a major change and waivers require a “high hurdle” for approval. That hasn’t happened here, he wrote, saying the broadcasters “fail to identify any special circumstances in this case that would warrant a deviation from the general rule. To the contrary, the waiver request and accompanying letters make clear that the waiver, if granted, would be so widely applicable as to be a general boon to the AM industry. The particular limitations noted by the parties do not create special circumstances such as would justify a waiver; rather, they appear to be the types of parameters that would typically define a rule of general applicability.”

Doyle suggested the issue would be more appropriately considered as part of the pending AM revitalization rulemaking proceeding. As part of that proceeding, the commission is considering opening a special filing window for AM owners to apply for an FM translator. Commissioner Ajit Pai said at last week’s Radio Show he hopes that happens no later than 2015.

In response to today’s decision, Pai stated he was disappointed, because granting the waiver request would have made it easier for AMs to obtain FM translators. “This step would have provided immediate relief to AM broadcasters, which is why the waiver request received widespread support from broadcasters” as well as the MMTC, he said.

The decision highlights the need for the commission “to take immediate action to help AM radio” and that it’s “critical that we open a window for AM broadcasters to apply for FM translators,” Pai said.